Oviatt v. Masi, 2018 BCSC 930

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Oviatt v. Masi, 2018 BCSC 930 Date: 20180607 Docket: M051357 Registry: Kamloops Between: Randy Oviatt Plaintiff And Andy Masi, Interfor Corporation, Her Majesty the Queen in Right of the Province of British Columbia and Deverell Contracting Ltd. Defendants And Deverell Contracting Ltd. Third Party Before: The Honourable Madam Justice DeWitt-Van Oosten Reasons for Judgment Counsel for the Plaintiff: Kelsey O'Bray Joseph A. Zak Counsel for the Defendant Andy Masi: Dustin J.M. Griffin Counsel for the Defendant Interfor Corporation: Janis D.

McAfee Counsel for the Defendant Her Majesty The Queen in Right of Canada: Tina Parbhakar Counsel for the Defendant and Third Party Deverell Contracting Ltd. Christine A. Becker Place and Dates of Hearing: Kamloops, B.C. May 1–3, 2018 Written submissions: May 11, 2018 Place and Date of Judgment: Kamloops, B.C. June 7, 2018 I. INTRODUCTION [ 1 ] On December 10, 2014, the plaintiff's vehicle collided with a tractor-trailer on the Adams West Forest Service Road, near Adams Lake.

He has filed a civil action seeking damages for personal injuries against the driver, as well as three parties that he says were responsible for maintaining the road. [ 2 ] Among other things, the plaintiff claims that the road was not reasonably maintained for winter driving. Because of its icy condition, he could not stop in time to avoid the collision. [ 3 ] The defendants said to be responsible for road maintenance at the collision site have each brought an application for

summary trial, seeking severance on the issue of liability and dismissal of the claims against them. [ 4 ] The driver of the tractor-trailer takes no position on their applications. [ 5 ] The

summary trial applications were heard in Kamloops on May 1–3, 2018. Judgment was reserved, with leave granted to the three applicants to file written submissions by May 11, 2018 on a matter that arose at the hearing. [ 6 ] Having now received and reviewed the written submissions, these are my Reasons for Judgment . II. ISSUES

[ 7 ] The

summary trial applications raise four issues:

a) Whether it is appropriate to sever liability from damages;

b) If so, whether a determination on liability as against the applicant defendants is amenable to a

summary trial under Rule 9 - 7 of the Supreme Court Civil Rules , B.C. Reg. 168/2009;

c) If a

summary trial is appropriate, whether expert reports sought to be tendered by the parties are admissible; and,

d) If the reports are admissible, whether leave to cross-examine the experts is warranted under Rule 9-7(12)(b). [ 8 ] If the answer on either the first or second of these issues is "no", that is the end of the matter and the applications must be dismissed. [ 9 ] If the answer on the first and second issues is "yes", the expert reports are admitted into evidence, and leave to cross-examine is warranted, a continuation of the

summary trial application will be necessary. Although the applicant defendants' expert witness was available for cross-examination at the May 1 hearing, the plaintiff's expert was not in attendance. [ 10 ] If the answer on both issues is "yes", the expert reports are not admitted into evidence, or, they are admitted, but cross- examination is not warranted, a determination must be made on the merits of the liability claim against the applicants. III. FACTUAL CONTEXT A.

Pleadings [ 11 ] In his Further Amended Notice of Civil Claim filed August 2, 2016 (NOC), the plaintiff alleges that the collision on Adams West Forest Service Road (Adams West) that has given rise to his injuries was caused by the driver of the tractor-trailer, including driving without due care and attention and failing to take reasonable steps to avoid a collision. [ 12 ] The NOC further alleges that the defendants Interfor Corporation (Interfor) and Deverell Contracting Ltd. (Deverell) both owed a duty of care to the plaintiff as the "repairers, maintainers and operators" of Adams West, and that they breached their duty by, among other things, failing to maintain Adams West and "its environs sufficiently or at all, such that the Road was in an unsafe, dangerous and hazardous condition". [ 13 ] As against the defendant Her Majesty the Queen in Right of the Province of British Columbia (the Province), the NOC alleges that its ownership of Adams West renders it ultimately responsible for the road and its "surrounding environs", including all matters relating to road maintenance.

This includes a "non-delegable duty to … ensure proper ice removal, snow removal, debris removal, sanding, salting, repair and maintenance" to Adams West. [ 14 ] The NOC asserts a failure by the Province to adequately supervise the maintenance undertaken by Interfor and Deverell. [ 15 ] In his response to the NOC, Andy Masi pleads that it was the plaintiff who caused the collision. Particulars of his alleged negligence include "driving without proper care and attention having regard to the time and place of the accident, the climatic conditions [and] the nature of the roadway …". B. Evidence on

Summary Trial Applications [ 16 ] The whole of the Application Record will not be detailed in the Reasons for Judgment . Rather, I will summarize the evidence I consider most salient to provide context for the Court's analysis. [ 17 ] As noted, the collision occurred on December 10, 2014. The plaintiff's pick-up truck collided with a tractor-trailer driven by the defendant Andy Masi. Both vehicles were travelling on Adams West. The collision occurred in the early afternoon at about the 61- kilometre mark. [ 18 ] The (now) 58-year-old plaintiff, Randy Oviatt, lived on Adams West.

He had lived there since 2011 and was familiar with the road. On December 10, he was driving a Ford F-250 pick-up truck. The truck was equipped with four-wheel drive and Mr. Oviatt deposes that it was engaged at the time of the collision. His truck was in good mechanical condition and operating with "winter tires". [ 19 ] While travelling on Adams West, the plaintiff carried a handheld ultra high frequency radio with him, so that he could access the radio channel used by logging trucks to notify other motorists of their presence and enable approaching traffic to prepare for the oncoming vehicle.

There are signs posted along Adams West that mandate certain locations at which a "call out" must occur. [ 20 ] Mr. Oviatt deposes that as he travelled northbound on Adams West, he called out his location every two to three kilometres, or upon reaching any "must call" locations. He had various exchanges with other motorists and then, after he passed kilometre 48, he heard nothing further. He called out his location at kilometre 58 and continued travelling. No southbound vehicles called out their location.

At kilometre 61, he was required to make another call out. [ 21 ] Shortly after kilometre 61, Adams West curves sharply to the right for northbound vehicles and is on a downward grade. There is a pull out for use prior to the corner, in the event there is an oncoming vehicle. [ 22 ] As he approached kilometre 61, Mr. Oviatt "suddenly" saw a southbound logging truck in the middle of the corner. This was

the vehicle operated by Mr. Masi. The plaintiff immediately applied his brakes and tried to steer to the right to avoid the logging truck. From his view, there was not enough room for the vehicles to pass. He says "old snow pushed to the side of the road had narrowed the roadway". Prior to braking, he was travelling between 30 and 40 kilometres per hour. [ 23 ] The plaintiff describes the surface of Adams West as "covered in compact snow and a layer of slippery ice". After he applied his brakes, Mr. Oviatt's vehicle did not slow down and began to slide toward the logging truck.

He tried to steer away from it, but his efforts did not alter the direction of his vehicle. [ 24 ] Mr. Oviatt turned his wheel to the right to avoid a head-on collision and his truck rotated in a clockwise fashion, colliding with the front of Mr. Masi's tractor-trailer. Significant damage occurred to his left rear door and the left side of the truck box. Mr. Oviatt's vehicle continued to slide and rotated toward the end of the road surface. It came to rest with its two front wheels in the snow on the edge of the road. The back of the pick-up truck was hanging down a bank toward a lake.

The front of the truck was facing the road. [ 25 ] Mr. Oviatt deposes that kilometre 62 on Adams West is a "must call" location for southbound vehicles. He did not hear Mr. Masi, or any other motorist on the radio indicating they were at kilometre 62 and heading southbound. Had he been told this, he would have stopped his truck before the kilometre 61 sign to allow the tractor-trailer to pass. [ 26 ] The plaintiff says when he exited his pick-up truck, he "could see the layer of ice" on Adams West. He "could not stand up on it initially, and you could barely walk on it". He deposes that the trailer on Mr.

Masi's vehicle was "sliding into the ditch, then spinning out as he tried to reverse. [Mr. Masi] applied chains to his tires so he could help pull [Mr. Oviatt's vehicle] out of the bank". [ 27 ] Mr. Oviatt deposes that because of injuries sustained in the collision, he has been unable to continue earning an income from harvesting cedar boughs. He claims damages for injuries sustained to his left shoulder, low back, right thigh and right hip. He underwent a hip replacement in summer 2015.

On quantum, he claims past and future loss of income, as well as costs associated with future care. [ 28 ] Shortly after the collision, another vehicle arrived (operated by a Mr. Vansickle). Mr. Oviatt says he saw Mr. Vansickle's vehicle "start sliding" and the driver had to put chains on before he could do anything else. Mr. Vansickle acknowledges having done so, but deposes that he took this step as a "precaution". If he would not have been stopped at the collision site, he would have waited until further up Adams West before donning chains. [ 29 ] Transcript excerpts from Mr.

Masi's examination for discovery in May 2016 formed part of the Application Record. He was asked questions about the collision and said he could see Mr. Oviatt travelling toward him from 50 to 100 yards away. Mr. Masi had time to stop his unloaded tractor-trailer before the collision. He pulled over to the right side of the road, into the snowbank, and there "would have been enough room for [the plaintiff] to go by if he had control of his truck". [ 30 ] Mr. Masi said Adams West was slippery when he got out of his vehicle. If a person was not "careful", they "probably could fall".

He confirmed that he put chains on his tractor-trailer to pull the plaintiff's truck from the bank at the side of the road. He said the collision occurred because the road was slippery and "you gotta drive to the road when it's like that". [ 31 ] Mr. Masi said he was travelling 20 miles an hour.

From his perspective, this is the average speed on Adams West in winter because if there are no chains on the vehicle and the driver hits the brakes, the vehicle will slide. [ 32 ] At the time of the collision, there was a large sign at kilometre 18 of Adams West, facing northbound travellers, which stated: UNMAINTAINED ROADS EXIST WITHIN THE ADAMS LAKE DRAINAGE AREA. HAZARDOUS CONDITIONS MAY BE PRESENT (I.E. POOR VISIBILITY, WATER BARS, ETC) USE AT YOUR OWN RISK. [ 33 ] After the collision was reported, an Operations Superintendent for Interfor ordered a sanding truck to sand the impacted area on Adams West.

This was said to have been done out of an "abundance of caution". [ 34 ] In December 2014, Interfor held a "Road Use Permit" for Adams West (the Permit). [ 35 ] The Permit was issued by the Ministry of Forests, Lands and Natural Resource Operations (the Ministry), in relation to forest tenures that were owned and operated by Interfor. [ 36 ] The Ministry considers Adams West a forest service road administered under the Forest Act, R.S.B.C. 1996, c. 157, the Forest and Range Practices Act , S.B.C. 2002, c. 69, and the Forest Service Road Use Regulation , B.C.

Reg. 70/2004. [ 37 ] Within the context of this statutory and regulatory regime, industrial users of a forest service road are required to obtain a Road Use Permit unless granted an exemption under the Forest and Range Practices Act . [ 38 ] In 2013, Interfor was granted its Permit "For Industrial Use" of Adams West. The Permit covered Adams West from kilometre 43 to 81.2. This included the place at which the collision occurred.

A similar Permit was granted to Interfor in 2006. [ 39 ] In its role as Permittee, Interfor was expected by the Ministry to know, understand and comply with the requirements of the Forest and Range Practices Act , the Forest Service Road Use Regulation and any obligations laid out by a District Manager with the Ministry. [ 40 ] The Permit granted Interfor the "non-exclusive right … to use the road", but "Subject to all Ministry of Forests legislation and regulations in force at the time of the work": s. 1.01. [ 41 ] It also came with explicit "Conditions of Use". These included:

2.01 As provided for in regulation, the Permittee is hereby required to carry out all maintenance activities for those roads identified as such on the

Schedule A or attached map … [Emphasis added.] … 3.02 By accepting delivery of this Permit, the Permittee agrees to be bound by its provisions and to perform all obligations that are to be performed by the Permittee under this Permit. 3.03 The terms and conditions imposed herein on the Permittee apply to the employees, agents and contractors of the Permittee.

The Permittee shall be responsible for the actions of his employees, agents, and contractors. [ 42 ] In June 2014, Interfor was sent a letter by the Ministry's District Manager for the Kamloops/Headwaters Districts, advising Interfor that it was "required to maintain" the sections of Adams West that fell within the scope of its Permit "as required by the district manager in accordance with current legislation".

The letter did not particularize expected maintenance practices. [ 43 ] However, an affidavit filed by the Area Manager of Roads (Clearwater) for the Thompson Nicola District Office of the Ministry of Transportation and Infrastructure deposes that "the obligations imposed for [forest service roads] are lower than those that may be related to public highways, at least in part due to their more isolated location, narrower purposes and scale and lower and more specific usage". [ 44 ] Interfor engaged the defendant Deverell to perform road maintenance on roads around Adams Lake where industrial logging was underway.

This included the portion of Adams West where the collision occurred. Deverell's operating area under its contract with Interfor covered hundreds of kilometres. [ 45 ] Deverell supplied two graders (with operators) for road maintenance on the forest service roads that it attended to.

Deverell did not consider itself obliged to undertake continual road maintenance, including grading; rather, it focused its work on roads that were under active use by the logging industry. [ 46 ] To Deverell's understanding, the 61-kilometre mark on Adams West was not actively used by the logging industry at the time of the collision.

On December 3, 2014, seven days before the collision, one of Deverell's grader operators plowed along Adams West, including the 61-kilometre area. [ 47 ] Affidavit material filed on behalf of Deverell deposes that de-icing measures were not common on Adams West (or the surrounding area). In fact, it was considered preferable and safer to maintain the ice pack to allow a compact surface for drivers. [ 48 ] Evidence filed by Interfor also states that sanding and/or salting Adams West was not necessary to meet Interfor's maintenance obligations.

Instead, its "primary method of road maintenance in the winter is to hire contractors to do grading using graders with ice blades". According to Interfor, sanding and salting are infrequently employed on roads like Adams West because "it can create more of a safety risk by breaking up the ice packs on the road". Industrial users typically pack chains with them for adverse conditions. [ 49 ] Two expert reports were included with the Application Record. One was collectively tendered by Interfor, the Province and Deverell. The other was filed by the plaintiff.

Both reports are objected to by the other sides, principally on the basis of inadequate qualifications to provide the stated opinion. [ 50 ] John Allen provided an expert opinion on behalf of Interfor, the Province and Deverell. He is a Registered Professional Forester. [ 51 ] Based on Mr.

Allen's review of the statutory and regulatory framework governing the use and maintenance of Adams West, as he understands it, the area in which the collision occurred was "to be maintained to the industrial use level of maintenance in winter". [Emphasis added.] [ 52 ] From his perspective, this means that the persons or entities responsible for road maintenance were required to ensure that Adams West "can be used safely by industrial users".

Moreover, accepted best practices for industrial use requires adding sand to a bladed road surface only when doing so is needed to provide proper traction for industrial vehicles when chains would not otherwise be suitable, or sufficient. Winter abrasives, such as sand, are "not routinely applied to industrial user roads like Adams West … nor are they required". [ 53 ] It is Mr. Allen's opinion that prior to the collision, road maintenance on Adams West was performed in accordance with accepted standards and sanding was not required.

Ultimately, he concluded that Interfor (and therefore the Province and Deverell) were meeting their obligations under the Permit. [ 54 ] The plaintiff's expert is Tim Leggett, an Accident Reconstruction Engineer. [ 55 ] Based on his review of the file material and governing framework, Mr. Leggett concluded that because of precipitation surrounding the day of the collision, and an ongoing freeze-thaw cycle, a "reasonable practice in keeping with industry standards would have been to monitor [Adams West] daily".

Moreover, the known weather and road conditions were such that sand should have been applied to improve "available traction". [ 56 ] Mr. Leggett put the "friction coefficient for ice" at the collision site at approximately 0.1. The "friction coefficient of a surface is a measure of the available traction". With a friction coefficient of 0.1, the surface of Adams West "would have been slippery, with significantly less traction compared to a compact snow or sanded winter roadway". [ 57 ] According to Mr. Leggett, had Adams West been sanded, the friction coefficient would have been approximately 0.3.

An "icy road with a friction coefficient of 0.1 would not be considered safe or a "good winter road" by any experienced maintenance contractor".

In Mr. Leggett's opinion, sanding "would have created a safer surface condition at the time of the collision" and Mr. Oviatt's ability to avoid the collision would have been greatly improved. IV. POSITIONS OF THE PARTIES A. Interfor [ 58 ] Interfor says there are compelling reasons to sever the issues of liability and damages. Furthermore, once severance occurs, there is sufficient evidence before the Court to make the findings of fact necessary to decide liability between the plaintiff and Interfor, the Province and Deverell. Only the claim against Andy Masi requires a conventional trial. [ 59 ] From the perspective of Interfor, a

summary determination on liability will save significant time and expense for the parties (as well as the Court). This was not quantified in any concrete way; however, a full trial of the action is currently scheduled for 19 days, commencing January 7, 2019, and this time was presumably set aside on the assumption that it was necessary to accommodate the evidence of five distinct parties. [ 60 ] Interfor argues that under the Permit, it had a limited obligation to maintain Adams West and fulfilled its obligations in that regard. It posted signage to warn road users to exercise caution.

It also engaged an appropriate contractor, Deverell, to maintain Adams West in accordance with industrial use standards. This is all it was required to do. [ 61 ] Interfor submits that the Occupiers Liability Act , R.S.B.C. 1996, c. 337 (the Act) governs its liability to users of Adams West and the scope of its liability under this legislation is limited. See: Foley v. Imperial Oil Limited , 2011 BCCA 262 at para. 29 . [ 62 ] Pursuant to the Act , the "maintainer" of a "resource road" is deemed a "limited liability entity", except in a defined set of circumstances, which are said to not apply here.

As a "limited liability entity", a "maintainer" has "no duty of care to a person in respect of risks willingly assumed by that person other than a duty not to (

a) create a danger with intent to do harm to the person or damage to the person's property, or (

b) act with reckless disregard to the safety of the person or the integrity of the person's property": ss. 3(3) and 3.1 of the Act. [ 63 ] Interfor sees itself as a "maintainer" of a "resource road". On its face, the Permit granted to Interfor in 2013 was a permit for the use of a "forest service road". A "resource road" under the Act is defined as any road that is situated on Crown land and used by motor vehicles, but does not include a "municipal highway" or "provincial public highway" as defined in the Transportation Act , S.B.C. 2004, c. 44.

From Interfor's perspective, Adams West is neither a "municipal highway" nor "provincial public highway". It does not meet any of the Transportation Act's criteria for a classification to this effect. [ 64 ] As such, Interfor takes the position that the "limited liability" provisions of the Occupiers Liability Act exclusively define its obligations to all users of Adams West. There is no evidence to suggest that Interfor created a danger at kilometre 61 with the intent to do harm or damage to property. Nor does the plaintiff suggest that it did.

From Interfor's perspective, there is similarly no evidence that it acted with reckless disregard for the safety of persons who used that portion of the road, or the integrity of their property. [ 65 ] Interfor says that on the day in question, Adams West was no more slippery or unsafe than usual, something its industrial users would be accustomed to, and there was no reason for Interfor to take extra precautions.

Interfor was obliged to keep the relevant portions of Adams West in a reasonable state of repair and it did. [ 66 ] Whatever restricted duty of care may have been owed in this case, Interfor says the duty was not breached. It is on this primary basis that Interfor argues it cannot be held liable, in whole or in part, for injuries sustained by the plaintiff as a result of the collision. B. The Province [ 67 ] The Province agrees with Interfor that the issue of liability against the applicant defendants should be severed.

Moreover, it argues it is appropriate to determine liability summarily in the interests of efficiency. [ 68 ] It is the Province's primary position that Interfor maintained Adams West in accordance with the governing legislation, requirements established by a District Manager and relevant industry standards.

It agrees with Interfor that Adams West is a "resource road" within the meaning of the Occupiers Liability Act and, therefore, attracts a reduced standard of care. [ 69 ] Furthermore, the Province says that because of the Permit, it had no distinct (or residual) maintenance-related obligations regarding the portion of Adams West where the collision occurred. [ 70 ] As such, even if it is wrong about whether Interfor met the road maintenance obligations required of it, the Province remains without liability.

In these circumstances, it would be Interfor that is responsible for damages resulting from the collision in the event a breach of duty and causation are established. C. Deverell [ 71 ] Deverell joins Interfor and the Province in a request for severance and

summary resolution on the issue of liability. [ 72 ] Deverell argues that liability against the applicant defendants is exclusively focused on whether they owed a duty of care to the plaintiff at the time of the collision and, if so, whether that duty was breached. From Deverell's perspective, this issue is distinct from the mechanics of the collision and the drivers' conduct. It is also a completely separate issue from damages.

[ 73 ] Deverell argues that a determination on the duty of care, and whether the duty was breached, does not require that the Court resolve issues of credibility. There are no material discrepancies relevant to this issue. Moreover, to the extent minor discrepancies may exist, they can be adequately resolved on the affidavit evidence. [ 74 ] Deverell says severance and

summary resolution will result in significant savings in time and expense. Moreover, the costs of taking the entire action to trial will likely substantially outweigh any damages to which the plaintiff may be entitled. Again, these costs have not been quantified in any way. [ 75 ] On the merits of the claim against the applicant defendants, Deverell agrees with Interfor and the Province that as a forest service road, Adams West attracts a lower standard of care for maintenance under the Occupiers Liability Act .

At all material times, Adams West was to be maintained in accordance with industrial use standards, nothing more. This requires only that the road be safe for industrial users in the winter and does not require the application of winter abrasives, such as sand. [ 76 ] Deverell says it properly maintained the forest service roads it was contractually responsible for, including Adams West. It was not responsible for taking de-icing measures, including applying sand or salt. It fulfilled its obligations in maintaining the roads.

Moreover, whatever may have caused the collision on December 10, 2014, it was not a cause attributable to Deverell. D. Andy Masi [ 77 ] Andy Masi is an independent hauler who worked for a logging contractor that did business with Interfor. [ 78 ] As noted, Mr. Masi takes no position on the applications for

summary trial. His counsel informed the Court that Mr. Masi has no intention to file a third-party claim against any of the applicant defendants. [ 79 ] In fact, Mr. Masi accepts that he is likely statute-barred from doing so because of the passage of time. Instead, he will defend the action against him on grounds of his own non-culpability and/or contributory negligence by the plaintiff. F. Randy Oviatt [ 80 ] The plaintiff is opposed to severance and

summary resolution of liability specific to the applicant defendants. [ 81 ] In the alternative, if the issue of liability is found suitable for

summary resolution, it is the plaintiff's position that the evidence proves liability against the applicants on a balance of probabilities. [ 82 ] The plaintiff provides a number of reasons in opposition to severance and a

summary trial. These include (but are not limited to):

a) significant conflicts in the evidence by the two expert witnesses that can only fairly be tested and resolved through cross- examination as informed by the entirety of the evidence called at trial;

b) examinations for discovery have not completed and, as a result, the plaintiff has not had full opportunity to explore the whole of the evidence available through the defendants' representatives, including relevant documents that may still be in the defendants' possession;

c) there is conflict in the evidence between the Interfor and Deverell representatives on the defendants' respective roles and responsibilities in maintaining Adams West, as well as what was required to meet the applicable maintenance standards;

d) because of their economic dependency on Interfor, witnesses with relevant evidence to provide in this case are reluctant or refuse to speak with plaintiff's counsel. As such, a subpoena to trial may be the only way in which to elicit this evidence and ensure that liability as against all four defendants is fully canvassed and determined;

e) even if Interfor, the Province and Deverell are removed as defendants, issues relevant to the maintenance of Adams West will need to be called at trial. This evidence will be relevant to the apportionment of liability, if any, between the plaintiff and Mr. Masi. As such, severance will not render the trial significantly shorter, or mean that evidence of road maintenance is no longer necessary.

The conditions of the road will continue to be at play, as well as the plaintiff's use of the road, his observations over time, what expectations he had when travelling Adams West in the winter, and the degree of care he was obliged to exercise based on the manner in which the road was historically maintained, as known to him; and,

f) the plaintiff argues that for the purpose of assessing negligence based on road maintenance, Adams West should be treated as a public highway rather than a forest service road. This is a complex determination involving statutory construction with significant implications for similar roads elsewhere in the province, including the duties and standards of care that attach to them. In light of the precedential value of the Court's analysis, the statutory and/or common law duties that arise in circumstances such as these must not be analyzed in a vacuum.

Rather, a full appreciation of the factual context is necessary, including the roles and responsibilities of the applicant defendants, the manner in which these responsibilities found form in practical terms, and, the extent to which maintenance practices as routinely (and historically) employed on Adams West should appropriately inform the Court's determination on the duty of care, governing standards and whether a breach occurred. [ 83 ] The plaintiff says the factual matrix of this case raises a serious question about whether the collision was caused, or at the very least contributed to, by a combination of acts from multiple defendants.

In light of that context, severance and a determination on liability without all named defendants at trial would be unjust. [ 84 ] On the merits of the claim, the plaintiff argues that none of the applicant defendants are "limited liability entities" under the Occupiers Liability Act . As such, they are not entitled to a reduced standard of care.

[85] Among other things, the plaintiff argues that Adams West is not a "resource road" within the meaning of the OccupiersLiability Act. Rather, it is appropriately characterized as a "public highway" and exempt from the Act's limited liability provisions. Pursuant to ss. 1 and 42(1) of the Transportation Act, the definition of "highway" includes any road that is deemed to have "become ahighway" by virtue of the fact that "public money is spent on [the] travelled road". The plaintiff says public monies are spent on AdamsWest. [86] The plaintiff acknowledges that Adams West is used by industrial traffic.

However, he argues that it also functions as a "mainthoroughfare" to private residences, certain provincial parks and various recreational sites. From the perspective of the plaintiff, thispractical-use reality supports a higher standard of care in maintaining the road than the applicant defendants are prepared toacknowledge.

He says their liability should be measured against the same standard that is brought to bear against the "maintainers" ofpublic highways. [87] From the plaintiff's perspective, this is a standard of care that mandates a more robust approach to road maintenance, includingde-icing measures, such as sanding. He argues that the December 2014 collision occurred, at least in part, because of a failure byInterfor, the Province and Deverell to fulfill their individual and collective responsibilities in ensuring that Adams West was reasonablymaintained in a manner that proved safe to all users, not only industrial. V.

LEGAL PRINCIPLES and ANALYSIS A. Severance and Amenability to a

Summary Trial [88] As explained at paras. 8–9 of Chun v. Smit, 2011 BCSC 412, when one or more defendants in a civil action applies for

summarydetermination under Rule 9-7 with respect to only one aspect of the case, a two-fold analysis is required: … If a trial of an issue is found to be an appropriate way to proceed, it may be tried under Rule 9-7, if Rule 9-7 itself is properlyapplicable.

Where a party seeks to proceed on only part of a case under Rule 9-7, the first question is whether there should be severanceat all, and the second is whether Rule 9-7 is appropriate … The test for severance is … whether there are "extraordinary, exceptional or compelling reasons" for severance of liability fromquantum. [Emphasis added.] See also: para. 21 of Chun v. Smit and Element v. Del Mar, 2012 BCSC 868 at para. 98. [89] Assuming the applicant under Rule 9-7 meets the test for severance, the principles governing the amenability of a

summary trialare summarized in Gichuru v. Pallai, 2013 BCCA 60: [30] In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), (BC CA), 36 B.C.L.R. (2d) 202(C.A.), the court confirmed that the court under this rule "tries the issues raised by the pleadings on affidavits", that "a triable issue orarguable defence will not always defeat a

summary trial application", and that "cases will be decided summarily if the court is able tofind the facts necessary for that purpose, even though there may be disputed issues of fact and law" provided that the judge does not find"it is unjust to do so" (p. 211).

In determining the latter issue (whether it would be unjust to proceed summarily), the Chief Justiceidentified a number of relevant factors to consider (at p. 215): In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, thecomplexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to aconventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for considerationon this important question. [31] To this list has been added other factors including the cost of the litigation and the time of the

summary trial, whether credibilityis a critical factor in the determination of the dispute, whether the

summary trial may create an unnecessary complexity in the resolutionof the dispute, and whether the application would result in litigating in slices: Dahl v. Royal Bank of Canada et al., 2005 BCSC 1263 atpara. 12, upheld on appeal at 2006 BCCA 369. [32] All parties to an action must come to a

summary trial hearing prepared to prove their claim, or defence, as judgment may begranted in favour of any party, regardless of which party has brought the application, unless the judge concludes that he or she is unableto find the facts necessary to decide the issues or is of the view that it would be unjust to decide the issues in this manner … [34] … the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of

summarytrial to determine an action (or issue), is a discretionary one … [35] The authorities are also clear that a

summary trial, although heard on affidavits in chambers, remains a trial of the action forwhich the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(

s) and the defendant (even if notthe applicant) retains the burden of establishing any defence that is raised … [Internal references omitted.] See also: Hyrniak v. Mauldin, 2014 SCC 7. [90] It is not disputed that actions for personal injury arising out of motor vehicle collisions may be appropriate cases in which tosever liability from damages, and have the court determine liability by way of

summary trial. [91] The applicant defendants brought examples to my attention, including: Bassi (Litigation guardian of) v. Bassi, 2010 BCSC1896 and Nason v. Nunes et al., 2007 BCSC 266; aff'd on appeal, Nason v. Nunes, 2008 BCCA 203.

[ 92 ] In Bassi v. Bassi , all parties agreed to sever the issues of liability and quantum on grounds that the "evidence relative to liability [was] unrelated to the evidence required to determine the nature and extent of the plaintiff's injuries": at para. 9. The parties also agreed that a determination on liability was amenable to the

summary trial process because credibility was not at stake and liability substantially turned on the evidence of one witness: at para. 9. [ 93 ] Nason v. Nunes involved two lawsuits heard together. Both lawsuits arose out of a collision that occurred after a truck driven by the defendant Nunes lost control on a bridge extending over the Okanagan River. The plaintiffs were passengers in the truck. [ 94 ] Among other things, they alleged that ice on the bridge contributed to the collision and was the product of inadequately maintained road conditions.

Not unlike the case before me, the contractor responsible for the road's maintenance was named as a defendant in both lawsuits. Initially, the Province was also named as a defendant. However, by consent, it was later removed: Nason v. Nunes at para. 47 . [ 95 ] All parties agreed in Nason v. Nunes that liability should be addressed first, with the assessment of damages adjourned to a later date: at para. 3. They also agreed that the issue of liability was suitable for consideration on a

summary trial basis: at para. 3. [ 96 ] It is apparent from Nason v. Nunes that there was "little actual disagreement about the facts among the parties": at para. 4. There was furthermore "no serious dispute" that the defendant contractor had met its contractual requirements in maintaining the road: at para. 15. [ 97 ] The contractor did not dispute that it owed a duty of care to users of the road, including the plaintiffs: Nason v. Nunes at para. 31. As such, the only real issue before the Court, in respect of the contractor, was whether compliance with its contractual obligations was sufficient to meet the requisite standard of care: at para. 38. [ 98 ] Whether severance and/or

summary resolution are appropriate under Rule 9 - 7 involves a case-by-case assessment. Moreover, it is a multi-factorial analysis. [ 99 ] In addition to the factors identified in Chun v. Smit , Gichuru v. Pallai and Inspiration Management Ltd. v. McDermid St.

Lawrence Ltd. , the determination on whether to proceed under Rule 9 - 7 is also logically influenced by the nature of the issues raised in the pleadings; their complexity; the extent or degree of conflicts in the evidence; and, where the case involves multiple defendants and more than one alleged cause of injury, the importance of assessing the evidence of all parties, as a whole , to fairly and justly determine liability, causation and the apportionment of liability where appropriate. [ 100 ] Applying the multi-factorial framework to this case, the applicant defendants have not persuaded me that this is an appropriate case in which to sever liability from damages and summarily resolve the first of these issues.

They bear the onus of doing so. [ 101 ] Although I appreciate the desire to avoid the time, expense and preparation efforts associated with a 19-day trial through the expeditious determination of liability against three of four named defendants, this is a case where, in my view, all disputed issues appropriately should be heard together, within the context of a fully fleshed-out and tested evidentiary foundation. The matter before me is qualitatively different from Bassi v. Bassi and Nason v. Nunes , where there was agreement on both severance and use of the

summary trial process. [ 102 ] There are a number of reasons for my determination. [ 103 ] On the Application Record, I find there are material facts in dispute that require greater exploration and/or an assessment of credibility. [ 104 ] These facts relate to how the collision occurred, as well as the nature of the road conditions on Adams West at the material time, the extent to which the conditions were known (or ought to have been known) to the parties, the applicants' understanding of their respective roles and responsibilities, and the maintenance practices they were obliged to employ (contractually or otherwise). [ 105 ] As one example, Mr.

Oviatt and Mr. Masi have different versions of what unfolded on December 10, 2014 and they point the finger at each other.

They also have different evidence to give on the condition of Adams West at the time of the collision, whether the conditions were manageable for users of the road, and the extent to which the collision was attributable to snow and ice on the surface of Adams West, as opposed to driver conduct. [ 106 ] The findings of fact that emerge from this evidence, once tested through cross-examination, and considered within the context of the other evidence, will carry significance to more than just the alleged driving negligence and/or contributory negligence of the personal defendants.

This evidence, once fleshed out, will likely also shed light on the true nature of the road's conditions and the degree of hazard that may, or may not, have been presented by those conditions. [ 107 ] As another example of conflicts in the evidence, Interfor acknowledges there is a discrepancy between Interfor's evidence on who made the decision about the level and form of road maintenance required on Adams West in December 2014. Interfor says its "primary method" of winter road maintenance on Adams West is to hire contractors to do grading and it is the graders who make the decision about where and what they do.

Deverell's evidence, on the other hand, is that Interfor provides direction on where Deverell should focus its grading efforts and the graders do not typically make a decision to plow unless asked to. [ 108 ] Counsel for Interfor argues that this discrepancy is immaterial to the issue of liability. I disagree. [ 109 ] Exploration of the dispute through cross-examination should offer greater clarity on who bears what obligation and, perhaps more importantly, Interfor's and Deverell's understandings of their respective obligations and the actions they took, or did not take, in furtherance thereof.

In my view, this evidence is highly relevant to better appreciating and, ultimately, defining the duties owed by these defendants, the constituent elements of the duties and whether they were breached in the circumstances of this case.

[ 110 ] Assuming (without deciding) that the applicants are correct and the limited liability provisions of the Occupier's Liability Act govern, these provisions do not preclude a finding of liability in the face of demonstrated "reckless disregard" for road-user safety. [ 111 ] Within this context, the extent of any hazard presented by icy road conditions on December 10, who was responsible for adverting to the hazard, and the measures taken in response (if any), is all relevant to the analysis. [ 112 ] Moreover, these are matters for which the trier of fact "should have the benefit of viva voce testimony and corresponding cross- examination in assessing the probative value of the evidence": Lougheed v.

Wilson , 2014 BCSC 2073 at para. 104 . [ 113 ] The plaintiff suggests that this case raises complex issues about the duty of care owed by each of the applicant defendants, the standard of care that applies, and what must be proved to show a breach.

From his perspective, a determination on these issues requires close consideration of the statutory and regulatory scheme under which Adams West is maintained, including its proper classification as a road for the purpose of the analysis. [ 114 ] In submissions before me, counsel for Interfor and the Province acknowledged that the statutory and regulatory regime governing the use and maintenance of Adams West is somewhat opaque.

One has to locate, trace and connect several dots to fully appreciate how it applies and the obligations it gives rise to. [ 115 ] The Permit itself, on which the applicant defendants place heavy reliance in support of their position on liability, sheds minimal light on the issue as it does not make explicit the rules or expectations governing road-maintenance responsibilities. [ 116 ] The same can be said of the June 2014 letter sent to Interfor by the District Manager of the Kamloops/Headwater Districts for the Ministry.

The letter tells Interfor that it is "required to maintain [the sections of the roads assigned to it] as required by the district manager in accordance with current legislation", but does not make explicit what those requirements are. [ 117 ] The difficulty in identifying, with certainty, the statutory and regulatory obligations of the applicant defendants for Adams West is readily apparent from the two expert reports tendered for the purposes of a

summary trial. [ 118 ] In his report, Mr. Allen opines on the applicants' maintenance obligations with reference to the Permit; Forest and Range Practices Act ; Forest Planning & Practices Regulation , B.C.

Reg. 14/2004 ; portions of a 2006 and 2013 Engineering Manual produced by government (which, although publicly accessible, is described by a Ministry representative as a document intended for "internal use"); a July 2006 memorandum from the Deputy Minister of Forests and Range issued as part of a "Shared Road Maintenance/Cost Sharing process Information Package"; and, specifications for the application of winter abrasives as set by the Ministry of Transportation. [ 119 ] Mr.

Leggett, on the other hand, opines on the applicants' maintenance obligations with primary reference to the Permit; the 2013 version of the above-noted Engineering Manual; a 2017 "Resource Road Maintenance Guide: a BC Forest Industry Initiative" (which a Ministry representative deposes is prospective in nature and in "pilot" phase only); and, a different part of the Ministry of Transportation's specifications for the application of winter abrasives. [ 120 ] In my view, this Court's ultimate determination on statutory and regulatory obligations in maintaining Adams West, for the purpose of informing the applicants' duties of care, the standards applied, and what must be proved to show a breach, whether under the Occupiers Liability Act or otherwise, will best be served through a full exploration and testing of the evidence of all defendants, including the regulatory background; known uses of Adams West; typical and generally accepted road conditions in winter driving; the maintenance practices employed at the time of the collision; the applicant defendants' understanding of what was required of them; and the genesis of that understanding. [ 121 ] Expert opinion evidence on industry standards, if ruled admissible, will also be relevant to the analysis, although certainly not determinative: Tran v.

Kim Le Holdings Ltd. , 2011 BCSC 1690 at para. 86 . The reliability of this evidence, and the probative weight assigned to it, will necessarily be informed by the surrounding evidentiary foundation and the extent to which that foundation substantiates the assumptions and/or theories relied upon by the experts. [ 122 ] At the May 1 hearing, the parties were not able to locate a case from this Court on the duty of care specific to Adams West Forest Service Road or like roads.

As I understand it, this action raises issues of first instance on that point. [ 123 ] Within this context, the plaintiff suggests that in the absence of agreement between the parties on severance and

summary trial resolution, or an evidentiary record that is considered comprehensive and adequate by both sides, it would be imprudent to determine these issues without the benefit of a conventional trial, a complete evidentiary foundation and the potential for added clarity through cross-examination. I agree. [ 124 ] I note that according to the plaintiff's affidavit material, document discovery in this matter is not yet complete. Nor has the time for the exchange of expert reports expired. These are relevant factors to deciding whether severance and a

summary trial are appropriate. See Pete v.

Terrace Regional Health Care Society , 2003 BCCA 226 at para. 10 . [ 125 ] Determining the duties of care in this case, the standards applied and what must be proved to establish a breach, will also logically involve consideration of the relationship between the Province, Interfor and Deverell in respect of Adams West. [ 126 ] The extent to which each defendant's authority and corresponding responsibilities are impacted by the Ministry's expectations of Permit holders, the terms and conditions of the Permit, and the terms of any contract between Interfor and Deverell is relevant to the analysis. [ 127 ] Again, in my view, these are not questions that can adequately be answered on the Application Record, without a testing of the evidence as informed by the particulars of the case, as a whole. [ 128 ] Finally, although Mr.

Masi says he will not point to the applicant defendants as being responsible for the collision on December

10, he alleges contributory negligence against the plaintiff, claiming that he drove "without proper care and attention having regard to the time and place of the accident, the climatic conditions [and] the nature of the roadway …". [ 129 ] In responding to this assertion, consistent with his pleadings, the plaintiff will point to the condition of Adams West and argue that the road presented an unanticipated hazard and was not adequately maintained.

He will further argue that this fact caused, or contributed to his inability to avoid a collision and, as a result, he is not to blame (in whole or in part). [ 130 ] In light of this reality, I am concerned that resolving liability against the applicant defendants on a

summary basis, even if the Application Record was sufficient for that purpose , would prejudice the plaintiff's ability to fully defend the assertion of contributory negligence, let alone result in duplicative proceedings and potentially inconsistent findings of fact. See: Dahl et al. v. Royal Bank of Canada et al ., 2005 BCSC 1263 , aff'd on appeal 2006 BCCA 369 at paras. 13–15 ; Hryniak v. Mauldin at para. 60 . [ 131 ] In light of these factors, considered in their entirety, I cannot say under Rule 9 - 7 that compelling reasons have been shown to sever liability from damages, resulting in a bifurcated process.

More importantly, I am not in a position to make the findings of fact necessary to determine the issue of liability as against Interfor, the Province and/or Deverell. Finally, given the complexity of the issues raised, and the possible prejudice to the plaintiff's ability to effectively pursue his action without all four defendants at trial, I consider a

summary trial process unjust. B. Admissibility of the Expert Reports and Leave to Cross-Examine [ 132 ] As a result of the conclusions reached on the first and second of the four issues raised by the

summary trial applications, it is not necessary for me to rule on the admissibility of the expert reports authored by Mr. Allen and Mr. Leggett, or whether cross-examination on the reports is warranted. Nor, in light of my determination, do I consider that form of ruling appropriate. This will be for the trial judge to determine. [ 133 ] During the May 1 hearing, various objections were made to parts of the affidavit evidence tendered by both sides on the applications (based on claims of inadmissible hearsay evidence or otherwise).

My determination that liability as against the applicant defendants is not amenable to resolution under Rule 9 - 7 also renders these objections moot, at least for now. If the parties seek to tender this same sort of evidence at trial on the merits of the action, it will be up to the trial judge to decide its admissibility. VI. DISPOSITION [ 134 ] For the reasons provided, the applications for severance and a

summary trial on liability in respect of Interfor, the Province and Deverell are dismissed. [ 135 ] In accordance with Rule 14-1(12)(b), the applicant defendants are not entitled to costs on their applications even if awarded costs on the trial. [ 136 ] The plaintiff, who succeeded in defending the

summary trial applications, is entitled to costs on the applications if awarded costs at trial. "DeWitt-Van Oosten J."